Our general-purpose attorney-client privilege rule is found in F.S. 90.502. Historically, this rule was subject to the common law “fiduciary exception,” which was bad news for all concerned because it inhibited the free flow of information between personal representatives, trustees and other types of fiduciaries, and their attorneys.

As I reported here, we legislatively closed that loophole in 2011 with the passage of F.S. 90.5021, a special purpose evidentiary code provision that extended the attorney-client privilege protections applicable in all other circumstances to fiduciaries.

Florida Supreme Court takes a pass:

But getting new evidence code provisions adopted is usually a two-step process. Under Florida’s state constitution, the authority to create new “substantive” law is reserved for the legislature, and the authority to create new “procedural” rules governing judicial proceedings is reserved for the Florida Supreme Court.

And because evidentiary code provisions can be both substantive and procedural in nature, new evidentiary code provisions usually have to be approved by both our legislature and our supreme court. Here’s an excerpt from The Florida Evidence Code and The Separation of Powers Doctrine, explaining how this balancing act is supposed to work:

The genesis of the substance-versus-procedure dichotomy under Florida law, along with its significance to the evidence code, lies in the separation of powers demarcated in the Florida Constitution. SeeFla. Const. art. II, § 3 (prohibiting members of one branch of government from exercising “any powers appertaining to either of the other branches unless expressly provided herein”). In contrast with the federal system, the Florida Legislature holds the authority to create substantive law, and the Florida Constitution specifically reserves to the Florida Supreme Court the right to regulate procedure within its courts. Fla. Const. art. V, § 2. The Court’s powers are not without limitation, however. Article V, § 2 provides the Legislature with the authority to veto or repeal, but not amend or supersede, a rule enacted by the Court. Against this backdrop, Florida courts have addressed the constitutional question of whether a legislative enactment encroaches upon the powers reserved to the Supreme Court by Article V.

So what was the Florida Supreme Court’s take on F.S. 90.5021? They took a pass, questioning “the need for the privilege to the extent that it is procedural.” In re Amends. to Fla. Evidence Code, 144 So.3d 536, 537 (Fla. 2014). But it’s not like they ruled against the statute, they just didn’t see a need to approve it. Did that matter? Yes.

Lack of Certainty = Litigation:

The lack of Florida Supreme Court approval didn’t kill F.S. 90.5021, but it did leave room for argument. And that’s never a good thing in litigation; as the parties in the Bivins v. Rogers case learned, when the statute’s effectiveness was challenged based on the absence of explicit Florida Supreme Court approval. As I reported here, this argument ultimately failed, but the lack of certainty lead to a whole lot of wasted time, money (and judicial resources) adjudicating what should have been a non-issue.

Florida Supreme Court roils the waters:

And then, just when we thought it was safe to rely on a battle-tested F.S. 90.5021, the Florida Supreme Court stepped in again, but not in the way most of us would have expected (or wanted). In In re Amendments To Florida Evidence Code, 210 So.3d 1231, 1236 (Fla. Feb. 16, 2017), the Florida Supreme Court seemed to indicate that it hadn’t approved of F.S. 90.5021not because it didn’t see a need to, but because it had “significant concerns” about the statute’s constitutionality. What?!

It has been this Court’s policy to adopt, to the extent they are procedural, provisions of the Florida Evidence Code as they are enacted and amended by the Legislature. However, on occasion the Court has declined to adopt legislative changes to the Evidence Code because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.[FN4]

Recognizing the problems this latest turn of events was going to cause, the Florida Bar’s Probate Rules Committee and the Code and Rules of Evidence Committee swung into action, petitioning the Florida Supreme Court to reconsider its prior decision to not adopt F.S. 90.5021. And thankfully the court did the right thing; it went ahead and retroactively adopted the statute in In re Amends. to Fla. Evidence Code, — So.3d —-, 2018 WL 549179 (Fla. Jan. 25, 2018), which is good news for all of us.

After considering the Committees’ report, the comments submitted to the Committees and filed with the Court, and the Committees’ response, we now adopt section 1 of chapter 2011–183, Laws of Florida, as provided in the appendix to this opinion, to the extent it is procedural. Our adoption of chapter 2011–183 is effective retroactively to June 21, 2011, the date it became law.

Hat tip to Jonathan A. Galler for his excellent reporting here and here on the Florida Supreme Court’s belated adoption of F.S. 90.502 and all of the twists and turns it took for the court to finally get to the right place on legislation practitioners have been cheering for since 2011. Better late than never ….

About the Author

Juan C. Antúnez is a partner with Stokes McMillan Antúnez P.A., a boutique trusts and estates law firm located in Miami, Florida. Trusts and estates litigation, probate administration and estate planning is all he does as a lawyer.
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